R (Platform & Ors) v HM Treasury

A costs decision by a judge who has heard the case and considered its detail is an exercise of discretion. The Court of Appeal should intervene only where the judge was wrong or clearly wrong. A finding that a party’s position has merit does not itself require an order for costs. The judge must decide whether such an order is appropriate and may choose between making no order and awarding an appropriate sum.

The appellants appealed against a costs decision made by Mr Justice Sales in the Administrative Court. The appeal concerned the proper interpretation of the judge’s final observations about the parties’ costs positions and his decision to award £10,000. The central issue was whether the judge had directed costs by reference to two periods, or had merely recognised merit in the defendants’ position before exercising his discretion to make a costs order.

The Court of Appeal dismissed the appeal.

1. Costs are a matter for the discretion of the judge who has heard the case over a period and become familiar with the detail of the disputes. It takes a great deal to justify appellate interference with that discretion.
2. The judge’s observations did not mean that costs were automatically payable for the later period, or that the defendants were necessarily entitled to recover costs. The judge was identifying merit in the defendants’ position. He then had to decide whether it was appropriate to make an order in the defendants’ favour.
3. At that stage, the available discretionary choice could properly be understood as one between making no order for costs and ordering payment of some costs. The judge chose an award of £10,000.
4. The Court of Appeal could not conclude that the judge was wrong, or clearly wrong, in making that award. There was therefore no basis to interfere with the exercise of his discretion.

Appeal dismissed.

• Court of Appeal (Civil Division): On appeal, the court dismissed the appeal: [2010] EWCA Civ 352.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Mr Justice Sales made the costs decision under challenge and awarded £10,000.